Citation Nr: 0501881
Decision Date: 01/26/05 Archive Date: 02/07/05
DOCKET NO. 90-42 787 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Oakland, California
THE ISSUES
1. Entitlement to service connection for a claimed skin
disorder to include as the result of exposure to herbicides
(Agent Orange).
2. Entitlement to service connection for an organic
disability claimed as sarcoma of the back of the mouth as a
result of exposure to Agent Orange.
3. Entitlement to service connection for a claimed kidney
disorder.
4. Entitlement to service connection for claimed peptic
ulcer disease, to include as secondary to post-traumatic
stress disorder (PTSD).
5. Entitlement to service connection for claimed sinusitis.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
C. Kedem, Associate Counsel
INTRODUCTION
The veteran had active military service from October 1967 to
May 1969.
This case originally came before the Board of Veterans'
Appeals (Board) on appeal from a decision of the RO (then in
San Francisco, California) in June 1988.
The veteran testified at a hearing held in the RO by a
Hearing Officer in March 1989.
The veteran was afforded a hearing at the RO before two
Members of the Board in August 1990.
The case was initially remanded by the Board to the RO for
additional development of the record in July 1991.
In a July 1992 rating action, the RO assigned a 100 percent
rating for the service-connected PTSD, effective on March 21,
1988. Service connection was also granted for
psychophysiologic gastroenteritis and headaches as due to the
service-connected PTSD.
The veteran was afforded a hearing at the RO before another
Member of the Board in March 1993.
The case was again remanded by the Board to the RO for
additional development of the record in April 1994.
Then, in an August 1995 rating decision, the RO granted
service connection for hypertension as secondary to the
service- connected PTSD.
In a June 1996 rating decision, the RO granted service
connection for tinnitus; residual shell fragment wounds of
the head, right shoulder and both legs; a left ear hearing
loss; a perforation of the tympanic membrane; blurred vision;
and alcoholic liver disease.
By December 2000 decision, the Board reopened the finally
decided claims of service connection for a skin disorder and
for an organic disability due to the receipt of new and
material evidence.
The issues of service connection for a skin disability and
service connection for peptic ulcer disease claimed as
secondary to PTSD are addressed in the REMAND portion of this
document.
These matters are being remanded to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
the veteran if further action is required on his part.
FINDINGS OF FACT
1. The veteran is not shown to be suffering from an organic
disability manifested by sarcoma of the back of the mouth as
a result of Agent Orange exposure.
2. The veteran is not shown to be suffering from a kidney
disorder due to any event or incident of in service.
3. The veteran is not shown to be suffering from sinusitis
due to any event or incident of service.
CONCLUSIONS OF LAW
1. The veteran is not shown to have an organic disability
manifested by sarcoma of the back of the mouth due to disease
or injury that was incurred in or aggravated by the veteran's
active military service; nor may any be presumed to have been
incurred in service or as the result of Agent Orange
exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002);
38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2004).
2. The veteran is not shown to have a kidney disability due
to disease or injury that was incurred in or aggravated by
the veteran's active military service. 38 U.S.C.A. §§ 1110,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2004).
3. The veteran is not shown to have a disability manifested
by sinusitis due to disease or injury that was incurred in or
aggravated by the veteran's active military service. 38
U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303
(2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000
In November 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475,
114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107 (West 2002).
VCAA provides that the Secretary shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for benefits unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. 38 U.S.C.A. § 5103A (West 2002).
The Secretary may defer providing assistance pending the
submission by the claimant of essential information missing
from the application. Id.
VCAA also contains provisions regarding the scope of notice
to which those seeking VA benefits are entitled. 38 U.S.C.A.
§ 5103 (West 2002).
Having reviewed the complete record, the Board believes that
there is ample medical and other evidence of record upon
which to decide the veteran's claim. The Board is unaware
of, and the veteran has not identified, any additional
evidence which is necessary to make an informed decision on
the issues.
Thus, the Board believes that all relevant evidence which is
available has been obtained. The veteran and his
representative, moreover, have been accorded ample
opportunity to present evidence and argument on his behalf,
including presenting testimony at a number of personal
hearings.
Further, by May 2001 letter and February 2004 supplemental
statement of the case, he and his representative have been
notified of the evidence needed to establish the benefits
sought, and he has been advised via these documents regarding
his and VA's respective responsibilities as to obtaining that
evidence. See Quartuccio v. Principi, 16 Vet. App. 183
(2002).
Consequently, the Board concludes that VA's statutory duty to
assist the veteran has been satisfied.
The Board notes that seeking further development of the case
would serve no useful purpose. Soyini v. Derwinski, 1 Vet.
App. 540 (1991) (strict adherence to requirements in the law
does not dictate an unquestioning, blind adherence in the
face of overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran should be avoided).
VA has satisfied, as far as practicably possible, the notice,
assistance, and other requirements of VCAA, and any further
action would only serve to burden VA with no foreseeable
benefits flowing to the veteran.
Factual Background
The veteran had combat service in the Republic of Vietnam and
is the recipient of the Purple Heart Medal with two stars in
addition to other decorations.
On September 1967 VA enlistment examination, no disability or
diseases were noted. The veteran's "PULHES" physical
profile amounted to a "picket fence" (i.e., all 1's),
indicating a high level of medical fitness. (See generally
Hanson v. Derwinski, 1 Vet. App. 512, 514 (1991) for an
explanation of the military medical profile system).
On the corresponding report of medical history, the veteran
indicated "ear, nose, or throat" trouble.
In July 1968, the veteran was wounded "due to enemy
action." A September 1968 notation regarding the incident
reflected shell fragment wounds.
A November 1968 service medical notation reflected a right
arm shrapnel wound to the right arm.
On April 1969 discharge medical examination report, the
examiner noted no relevant diseases or disabilities. Only a
mark on the left shoulder was indicated.
On May 1981 VA medical examination, the veteran reported
"stomach problems," constipation, rashes, blisters,
alcoholism, fevers, dizziness, nose and mouth bleeds, and
vomiting.
By July 1981 rating decision, the RO denied service
connection for an organic disability attributable to Agent
Orange exposure manifested by liver and kidney problems,
stress, skin symptomatology, alcoholism, hypertension,
headaches and blurred vision.
Pursuant to a November 1981 VA psychiatric examination, the
examiner diagnosed PTSD manifested by such symptoms as
psychosomatic gastrointestinal problems.
On March 1982 VA medical examination, the veteran complained
of blisters on his neck, back and arms. The examiner noted
that the rash was pruritic. There were also lesions on the
legs and groin. He reported upper abdominal cramping.
An X-ray study revealed low lung volumes consistent with
smoking or a chronic inflammatory condition. The examiner
diagnosed essential hypertension, possible peptic ulcer
disease, a history of a skin rash that was not present on
examination, and hyperventilation.
On March 1985 VA psychiatric examination, the examiner
diagnosed chronic PTSD and episodic alcohol abuse. There
were no known physical illnesses according to the examiner.
An October 1988 VA progress note indicated a diagnosis of
sinusitis.
A November 1988 VA medical report reflected mild acute
gastritis and campylobacter organisms.
At a May 1989 hearing at the RO, he indicated that he
suffered from bleeding ulcers and sinusitis.
An August 1989 ear, nose, and throat evaluation reflected the
veteran's nasal cavity showed mild edema consistent with a
history of allergic rhinitis.
In May 1991, a lesion in the oral cavity was noted as was
postnasal drainage.
On March 1992 VA neurologic examination, the veteran reported
intermittent rashes and stated that he had been treated for
peptic ulcer disease since 1970.
On March 1992 VA gastrointestinal examination, the examiner
diagnosed psychophysiologic gastroenteritis. The examiner
indicated that the only physical finding was in 1980 when
antral polyps and mild gastritis were diagnosed.
On May 2003 VA respiratory examination, the veteran detailed
the history of a nose injury in service as well as treatment
thereof. The examiner noted that the service medical records
made no reference to such an injury. The veteran also
reported a sarcoma and was concerned that it was related to
Agent Orange exposure.
On physical examination, the examiner noted a deviated nasal
septum with decreased airflow through the left nostril. A
partial upper palate was present, but there were no lesions
on the palate.
The examiner diagnosed a history of a recurrent palate ulcer
that was possibly related to a dental prosthesis, now
resolved and traumatic septal deviation with secondary nasal
obstruction and symptomatic rhinitis and sinusitis due to
narrowing of the nasal passages from septal deviation.
The examiner opined that the veteran did not and never did
suffer from a sarcoma in the mouth. The examiner stated that
the question of whether a sarcoma was secondary to Agent
Orange exposure was moot because the veteran had no current
lesions and never did have a sarcoma.
A May 2003 VA examination report reflected a diagnosis of
gastric antral polyps and helicobacter pylori gastritis. The
examiner noted that if helicobacter pylori serology remained
positive, he would refer the veteran for further testing.
The veteran stated that he did not want to undergo testing
due to the lack of symptoms. In the report, the examiner
mentioned the veteran's history of severe alcohol abuse.
A May 2003 VA genitourinary examination report indicated that
the veteran's urinary creatinine levels were within normal
limits, there was no hesitation or dysuria. The examiner
diagnosed albuminuria secondary to diabetes mellitus,
hypertension, type II diabetes mellitus, obesity and
hypertriglyceridemia.
On May 2003 VA dermatlogic examination, there was no rash
over the arms. There was marked folliculitis from the chest
to the upper abdomen. There was no evidence of inflammation
or maceration in the inguinal areas or between the toes.
There was no indication of a fungal infection of the toes.
The examiner diagnosed folliculitis of the anterior chest and
abdomen and a history of a fungal infection of the feet.
With respect to whether the veteran's skin condition was
related to Agent Orange exposure, the examiner indicated that
the veteran did not suffer from chloracne, the primary skin
condition associated with Agent Orange exposure. He also did
not suffer from blistering or other signs of porphyria
cutanea tarda, the other skin condition associated with Agent
Orange exposure. The veteran's folliculitis was unrelated to
Agent Orange exposure according to the examiner.
In January 2004, regarding the veteran sinuses, the examiner
noted that the veteran suffered a nasal fracture and possible
septal injury in service. He had some problem with crusting
and drainage over the years. These symptoms, however, were
seasonal, according to the veteran. The examiner noted that
the veteran never required sinus surgery and did not receive
antibiotic treatment for nasal complaints for many years.
This alone, according to the examiner, would militate against
a finding of sinusitis. Upon review of the record, the
examiner noted that there was little to no mention of
sinusitis in the medical records. The veteran, in
conclusion, did not have sinusitis. Rather, according to the
examiner, he suffered from moderate allergic rhinitis.
Law and Regulations
Service connection will be granted if it is shown that the
veteran suffers from disability resulting from an injury
suffered or disease contracted in line of duty, or for
aggravation of a preexisting injury suffered or disease
contracted in line of duty, in the active military, naval, or
air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
That an injury occurred in service alone is not enough; there
must be chronic disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity.
38 C.F.R. § 3.303(b).
Additionally, for veteran's who have served 90 days or more
of active service during a war period or after December 31,
1946, certain chronic disabilities, such as chloracne or
other acneform disease consistent with chloracne and
porphyria cutanea tarda, are presumed to have been incurred
in service if manifest to a compensable degree within one
year of discharge from service. 38 U.S.C.A. §§ 1101, 1112;
38 C.F.R. §§ 3.307, 3.309.
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
A claim of service connection for a disability must be
accompanied by medical evidence establishing that the
claimant currently has a claimed disability. Absent proof of
a present disability, there can be no valid claim. See,
e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38
U.S.C. § 1110 requires current symptomatology at the time the
claim is filed in order for a veteran to be entitled to
compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir.
1997) (38 U.S.C. § 1131 requires the existence of a present
disability for VA compensation purposes).
When a claim is filed for entitlement to service connection,
whether on a direct basis or as secondary to a service-
connected disability, there must be an initial finding of a
current chronic disability. Although the appellant may
testify as to symptoms he perceives to be manifestations of
disability, the question of whether a chronic disability is
currently present is one which requires skill in diagnosis,
and questions involving diagnostic skills must be made by
medical experts. Espiritu v. Derwinski, 2 Vet. App. 492
(1992).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given the claimant. 38
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990); 38 C.F.R. § 3.102.
When the positive and negative evidence as to a veteran's
claim are in approximate balance, thereby creating a
reasonable doubt as to the merits of a claim, the veteran
prevails. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).
Discussion
Organic disability manifested by a sarcoma of the back of the
mouth
as the result of Agent Orange exposure
In May 2003, the VA examiner diagnosed a history of a
recurrent palate ulcer that was possibly related to a dental
prosthesis, now resolved. The veteran, moreover, never
suffered from a palate sarcoma, according to the examiner.
Service connection cannot be granted for a past disability,
or, indeed, for a disability that never existed. See
38 C.F.R. § 3.303; Gilpin, supra. As such, service
connection for sarcoma of the back of the mouth cannot be
granted. 38 C.F.R. § 3.303. An "organic disability," the
Board notes, has not been found.
In any event, the examiner attributed the veteran's past
palate ulcers to a dental prosthesis and not to service or
Agent Orange exposure. Absent a nexus to service, service
connection for a claimed disability cannot be granted. Id.
The Board notes that service connection for palate ulcers
could not have been granted on a presumptive basis.
38 C.F.R. §§ 3.307, 3.309.
The benefit of the doubt rule is not applicable in this
instance. See Ortiz, 274 F.3d at 1365. The evidence
reflects that the veteran does not suffer from a disability
of the palate that is related to service or to Agent Orange
exposure. There is no evidence of equal weight to the
contrary.
When the evidence is in relative equipoise, the claimant
prevails. See Gilbert, supra. This is not the case herein.
The Board observes that the veteran's beliefs about the
nature and etiology of his disability are not evidence upon
which the Board might rely. See Espiritu, supra. The
veteran, as a layperson, is not qualified to provide medical
opinions that the Board may give probative weight.
Kidney disorder
On May 2003 VA genitourinary examination, the veteran was
diagnosed with albuminuria secondary to diabetes mellitus,
hypertension, type II diabetes mellitus, obesity, and
hypertriglyceridemia. A renal disability was not found.
Service connection can only be granted for current
disabilities. See 38 C.F.R. § 3.303; Gilpin, supra. Because
the veteran is not shown to be suffering from a kidney
disorder that is not a symptom of diabetes mellitus, for
which, the Board notes, service connection has already been
granted, service connection for such a disability cannot be
granted. Id.
The benefit of the doubt rule is not applicable in this
instance. See Ortiz, 274 F.3d at 1365. The evidence
reflects that the veteran does not suffer from a separate and
distinct kidney disorder.
There is no evidence of equal weight to the contrary. When
the evidence is in relative equipoise, the claimant prevails.
See Gilbert, supra. This is not the case herein.
Sinusitis
Pursuant to the January 2004 comprehensive medical opinion,
the veteran does not suffer from sinusitis.
A review of the evidence reflects that allergic rhinitis,
rather than sinusitis, has been diagnosed in January 2004 as
well as in May 2003 and on prior examinations.
Because the veteran does not have sinusitis, service
connection for that disability cannot be granted. 38 C.F.R.
§ 3.303. Gilpin, supra.
The benefit of the doubt rule is not applicable in this
instance. See Ortiz, 274 F.3d at 1365. The evidence
reflects that the veteran does not currently suffer
sinusitis. There is no evidence of equal weight to the
contrary.
When the evidence is in relative equipoise, the claimant
prevails. See Gilbert, supra. This is not the case herein.
ORDER
Service connection for an organic disability manifested by
sarcoma of the back of the mouth is denied.
Service connection for a kidney disorder is denied.
Service connection for sinusitis is denied.
REMAND
A complete VCAA notice must be sent to the veteran. VCAA
notice must include, of course, details regarding the
veteran's and VA's respective responsibilities with respect
to securing and furnishing relevant evidence. See Quartuccio
v. Principi, 16 Vet. App. 183 (2002).
It is unclear from the May 2003 VA medical examination
whether the veteran suffers from peptic ulcer disease or
other similar disorder that is related to PTSD.
As such, an additional VA examination must be scheduled in
which the examiner is asked to diagnose all gastrointestinal
disabilities and comment on the etiology thereof including
the relationship, if any, between that disability and the
service-connected PTSD.
The RO must ask the author of the May 2003 VA dermatologic
examination report whether the veteran's currently diagnosed
folliculitis is related to service. If that examiner is
unavailable, the veteran must be afforded another VA
dermatologic examination in which the examiner diagnoses all
skin disorders and opines regarding the etiology of each.
Hence, the case is REMANDED for the following development:
1. The RO must review the claims file to
ensure compliance with the mandates of
the VCAA. See 38 U.S.C.A. §§ 5102, 5103,
5103A, and 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a)
(2003). See also Veterans Benefits Act
of 2003, Pub. L. No. 108-183, 117 Stat.
2651 (Dec. 16, 2003); See Quartuccio,
supra.
2. The RO must schedule a VA
gastrointestinal examination to determine
the nature and likely etiology of the
claimed peptic ulcer disease. The
examiner must comment regarding the
etiology of any such disability diagnosed
and comment upon the relationship, if
any, between any gastrointestinal
disability diagnosed and the service-
connected PTSD. The claims file and a
copy of this remand must be made
available to and reviewed by the examiner
prior to the requested examination. The
examiner should indicate in the report
that the claims file was reviewed. All
necessary diagnostic tests should be
performed. A rationale for all opinions
and conclusions must be provided.
3. The RO should schedule the veteran
for a VA examination to ascertain the
nature and likely etiology of the claimed
skin disorder. The examiner must opine
regarding the etiology of each identified
skin disorder. The claims file and a
copy of this remand must be made
available to and reviewed by the examiner
prior to the requested examination. The
examiner should indicate in the report
that the claims file was reviewed. All
necessary diagnostic tests should be
performed. A rationale for all opinions
and conclusions must be provided.
4. The veteran is advised that failure
to report for a scheduled VA examination
without good cause shown may result in
adverse consequences. 38 C.F.R. § 3.655.
5. The RO should review the claims file
to ensure that all of the above requested
development has been completed. In
particular, the RO should ensure that the
requested examinations and opinions are
in complete compliance with the
directives of this remand and, if they
are not, the RO should take corrective
action. See Stegall v. West, 11 Vet.
App. 268 (1998).
6. Thereafter, the RO should
readjudicate the issues on appeal. If
any claim remains denied, the veteran and
his representative should be provided
with a Supplemental Statement of the Case
and afforded the appropriate period of
time to respond thereto. The
Supplemental Statement of the Case must
contain notice of all relevant actions
taken on the claim for benefits, to
include a summary of the evidence and
applicable law and regulations considered
pertinent to the issues currently on
appeal. An appropriate period of time
should be allowed for response.
Thereafter, the case should be returned to the Board for the
purpose of appellate disposition, if indicated.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat.
2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).
______________________________________________
STEPEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs